Trump’s Order Pushes Social Media to Cease ‘Unfair’ Speech Restrictions

May 28, 2020 Updated: May 28, 2020

President Donald Trump signed an executive order on May 28 directing federal agencies to develop regulations under an existing law that protects social media companies from being sued for user content. The regulations aim to protect users from unfair or deceptive content restriction practices employed by these companies.

The order may force social media giants such as Twitter, Facebook, and YouTube to relax their content restrictions, especially on political speech, lest they risk losing significant liability protections.

Days ago, Twitter added a new “fact-checking” label on two of Trump’s tweets, to which he responded by accusing the company of election interference. 

“The choices that Twitter makes when it chooses to suppress, edit, blacklist, shadowban are editorial decisions, pure and simple,” the president said. “In those moments, Twitter ceases to be a neutral public platform and [becomes] an editor with a viewpoint, and I think we can say that about others also.” 

Trump accused Twitter of “selectively applying” its fact-check labeling, noting that they have the power to choose what to fact-check and what to ignore or promote. He said it was nothing more than “political activism.” 

“I think you all see it yourselves, this censorship and bias is a threat to freedom itself,” he said. “Imagine if your phone company silenced or edited your conversation.” 

Trump called for new regulations under section 230 of the 1996 Communications Decency Act to make it that social media companies that engage in “censoring” or “political conduct” will not “be able to keep their liability shield.” 

Section 230 largely exempts online platforms from liability for content posted by their users, although they can be held liable for content that violates anti-sex trafficking or intellectual property laws.

The law was meant to protect a “fledgling industry,” said Attorney General William Barr during Trump’s announcement of the executive order, adding that it has since been “stretched way beyond its original intention, and people feel that on both sides of the aisle.”

The law allows companies to restrict or remove content “in good faith” if they consider it “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

The protections, however, weren’t intended to apply to services that act more as publishers than platforms, Barr indicated.

“When they put on their own content, like fact check content, onto other people’s content, and when they curate their collection and when they start censoring particular content, including in many cases at the direction of foreign governments, like communist China, they become publishers,” he said.

Trump’s order directs the Federal Communications Commission (FCC) to develop regulations for what is and isn’t “good faith” on the part of online platforms. The regulations should spell out when content restrictions are “deceptive, pretextual, or inconsistent with a provider’s terms of service; or … taken after failing to provide adequate notice, reasoned explanation, or a meaningful opportunity to be heard.”

The order may force tech companies to always provide a reason, a way to appeal, and some time to respond before the company takes a restrictive measure against content posted by the user. The companies may also have to defend themselves from accusations that the provided reason wasn’t the actual one.

Users will be able to voice their grievances directly with the White House through a “Tech Bias Reporting” website that Trump already ran for several months last year. During that time, it collected over 16,000 complaints of online censorship. The website will be reestablished and the complaints it receives will be sent directly to the Federal Trade Commission (FTC), which will summarize them in a public report.

Trump will order the FTC to “consider taking action” against online platforms for engaging in “unfair or deceptive acts or practices” if they “restrict speech in ways that do not align with those entities’ public representations about those practices,” the order says.

The FCC will also be directed to propose regulations that it “concludes may be appropriate to advance the policy” set forth in the order.

“Communication through these channels has become important for meaningful participation in American democracy, including to petition elected leaders,” the order says. “These sites are providing an important forum to the public for others to engage in free expression and debate.”

It mentions the 1980 Supreme Court case of Pruneyard Shopping Center v. Robins, which established that states are free to pass laws that allow free expression on private property.

That suggests that the White House would support states that grant their residents additional rights when browsing the internet—such as the right to free speech. Online platforms would then be forced to respect those rights when providing services in such states.

Barr accused the tech giants of using their influence to sway public discussion.

“There’s a bit of a bait and switch that’s occurred in our society. These companies grew because they held themselves out as free public forums where a variety of diverse voices could come on and be heard. That’s how they grew. That’s how they attracted the eyeballs. That’s why people joined them,” he said.

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